Divorce mediation is a voluntary alternative to litigation that allows a couple to resolve common divorce issues, such as negotiating child custody and spousal support, outside of a traditional divorce court.
Instead, the couple will meet with a court-appointed, neutral third-party known as, a “mediator.” In some instances, a couple may hire a mediator without the intervention of a court. The meetings are typically held in the mediator’s office.
The goal of divorce mediation is to find a reasonable legal solution that benefits both parties in an efficient, inexpensive, and friendlier manner. Once all matters are resolved and a final resolution is reached, the mediator will then draft a divorce agreement that must be reviewed by both parties and their respective attorneys.
Eventually, the signed divorce agreement will be filed in court along with the other documents that are necessary for finalizing a divorce.
A mediator is a person who is trained to help conflicting parties reach an agreement or compromise. They do this by encouraging cooperative communication between the parties, keeping them focused on the important issues that need to be settled. They also create an environment that promotes understanding the opposing parties’ viewpoints.
While mediators may provide their own opinions or offer the parties possible solutions, they do not make any decisions on behalf of the parties and they do not have any legal power to force a result on them either. Mediators are simply there to assist the couples in working toward a mutually beneficial agreement.
Additionally, mediators may or may not be licensed attorneys. Regardless, they will not be acting in an attorney capacity, meaning they will not take sides or represent either party. This is why mediators are considered objective or neutral third-parties.
There are many advantages to using divorce mediation as a method to negotiate a divorce settlement agreement, such as:
- Mediation is meant to be less stressful than litigation and thus, tends to have a more positive effect on not only the parties, but also any children involved;
- Divorce mediation is less expensive than litigation. The parties pay one mediator, as opposed to paying two lawyers and court fees;
- Since divorce mediation is meant to be a cooperative process, it usually takes less time to resolve issues than litigation because the parties are not pitted against one another and must work together in order to resolve their issues. The length of time is also one of the reasons why divorce mediation costs less;
- Mediation may be a good option in cases where both parties want a divorce, but cannot seem to agree on specific issues. A mediator can help facilitate any hidden communication problems to help them reach an agreement; and
- Divorce mediation allows parties to keep their matters private. This is due to the fact that mediations are kept confidential, whereas court matters are public record.
Although divorce mediation offers many benefits to parties, there are certain instances when it may not be available as an option. This includes cases where:
- The parties are overly contentious and cannot work through a matter civilly together;
- There is a history of domestic violence in the relationship; and
- If there are specific legal issues present that require the supervision of a court.
Although divorce mediation generally tends to be a much simpler process than going to court, most people still have concerns about how it works. Some commonly asked questions include:
- Does mediation enable one spouse to dominate the other? A certified mediator is trained to pay attention to any dominating behavioral traits. If such behavior occurs and the mediator does nothing to correct the imbalance, then the mediator must be removed from the divorce mediation.
- Does being a particular sex or gender provide greater advantages in the mediation? Unless the mediation is court-ordered, neither party is required to sign any agreement. If a person feels bullied or that they are being mistreated, then they can bring the issue up with a judge for resolution.
- Is mediation more complicated than hiring a lawyer to get a traditional divorce? Generally, no. Mediation is usually quite streamlined and straightforward. It typically lacks many of the restrictions and formalities found in court. Plus, it can save the parties money.
- Does mediation take longer than divorce proceedings? Mediation normally takes less time than typical divorce proceedings, even in cases where the parties were able to settle out of court.
Once a mediation divorce agreement is drafted and signed, it is considered to be finalized. This means the agreement can be legally binding on the parties and used as proof in court proceedings, should it be necessary.
Alternatively, if the parties involved in a divorce mediation do not reach a final resolution (i.e., if no agreement is signed), then the contents of the mediation will remain non-binding. However, a party may be able to use the unsigned agreement to make a case against the other party. For example, the unsigned agreement may offer proof that the other party is being difficult or intentionally uncooperative.
As previously mentioned, if an agreement is reached, then it will be filed in court along with the rest of the necessary divorce paperwork. If an agreement is not reached, then the parties have several options, such as:
- The parties can ask for more time to think about the issues and at some agreed upon date, return to mediation to finish resolving them;
- An agreement can be formed for the issues that are already settled and any remaining issues can be litigated in court. In this scenario, the finalized issues will become legally binding, while those being litigated will remain non-binding until a court issues a final decision; or
- In the event that no issues can be resolved by the parties in mediation or if mediation fails, then they may have to resort to litigation and go to court.
Accordingly, the status of a divorce settlement signed during a mediation will depend on several factors, including whether the parties signed a final agreement, whether that agreement was subsequently filed in court, and whether the agreement included all or only some of the issues discussed during the divorce mediation.
Regardless of whether you are thinking about entering into divorce mediation or are already involved in the process, it may be in your best interest to contact a divorce lawyer who has experience in divorce mediation.
A lawyer with such qualifications will be able to offer you guidance regarding negotiations, assist you in developing a plan of action, and can review any drafts of a divorce agreement before you sign and officialize it. They also can help you prepare and file any final divorce paperwork that will be necessary after the mediation process ends.
Additionally, if there are any issues remaining or if for some reason you need to resort to litigation, a divorce lawyer can also represent you in court.